A pre-emptor's failure to deposit the full amount of the pre-emption amount within the time specified in the decree is a material breach of the decree, and the vendees are entitled to restitution of possession of the land.

BHOPINDER SINGH DHILLON, J.

1. Labh Singh appellant filed a suit claiming superior right of pre-eruption over the land in dispute. The said suit was decreed by the learned trial Court on May 27, 1971, subject to the total payment of Rs. 28,881.50. The learned trial Judge directed that the plaintiff should deposit the pro-eruption amount after deducting the 1/5th pre-eruption amount already deposited by 10th July, 1971. The plaintiff-appellant deposited a sum of Rupees 23,481.50 P. on 7th July, 1971. This amount is admittedly short by a sum of Rs. 200 as he was required to deposit Rs. 23,681.50 P. i.e., Rs. 28,881.50 less 1/5th amount of pre-emption already deposited. The vendees challenged the judgment and decree of the learned trial Court. The appeal was filed on 7th June, 1971. The vendees prayed for stay of dispossession during the pendency of the appeal which prayer was allowed on 8th June, 1971, by the first Appellate Court. The said appeal was dismissed on 18th Aug., 1972. The appellant then filed an application for the execution of the preemption decree and was put in possession of the land in dispute on 2nd Dec., 1972. When the vendees went to withdraw the pre-emption amount, they came to know trial, the pre-emption amount was short by Rs. 200. They then filed an application on 26th Dec., 1972, for the restitution of the possession of the land. This application was allowed by the learned Executing Court vide order dated 15th June, 1974, and the said order was affirmed by the first Appellate Court on 10th Jan.,1975. This order has been challenged in this Execution Second Appeal. The appeal was got admitted to a Division Bench by making reference to a Bench decision of this Court in Des Raj V/s. Vinod Kumar, AIR 1970 Punj 559; wherein it was held that in case the vendees failed to make out a ground in appeal regarding the noncompliance with the terms of the decree of pre-emption, the said pleas cannot be subsequently taken at the stage of the execution as the same will be barred by the principle of res judicata and not having raised the plea in the grounds of appeal against the terms of the decree, the objection will be held to have been waived. The correctness of the view taken by the Bench in Des Raj s case (supra) was doubted by me while sitting in Division Bench with S. P. Goyal, J., and therefore, the case was referred to the Hon ble the Chief Justice for constituting a larger Bench. This is how this appeal is before the Full Bench.

2. Shri G. C. Mittal, the learned counsel for the appellant, vehemently contended trial since the stay was obtained by the vendees on 8th June, 1971, therefore, the reciprocal liability of the pre-emption to deposit the pre-emption amount also automatically got stayed and thus the pre-emptors could deposit the money subsequently. The reliance in this regard has been placed on a decision in Dattatraya V/s. Saikh Mahaboob Saikh Ali, AIR 1970 SC 750. It is no doubt true that in view of the provisions of O. 20, R.14 of the Civil P. C., the decree and a preemption suit imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other and if the obligation imposed upon one party is stayed by the appellate Court, there is automatic stay of the reciprocal obligation on the other party; but this principle cannot be invoked in the facts and circumstances of this case. Admittedly, the amount which was deposited for preempting the land under the decree, is short by a sum of Rs. 200 and till today that shortfall has not been made good. The first appeal was dismissed on 18th Aug., 1972. If the sum of Rs. 200 had been deposited on or immediately after 18th Aug., 1972, probably the principle referred to above might have been helpful to the appellant but admittedly till today, the said amount has not been deposited, nor did the Appellate Court extend the time for depositing the preemption amount. In a given case, if the Appellate Cour